Judgment :- V. Periya Karuppiah, J. This appeal is directed against the judgment of conviction and sentence passed against the appellant/accused by the Additional District and Sessions Judge, Fast Track Court No.3, Chennai made in S.C.No.26 of 2007 dated 19.07.2007. The appellant/accused was convicted and sentenced by the Trial judge u/s. 302 I.P.C to undergo life imprisonment. 2. The case of the prosecution in brief would be as follows:- The accused and the deceased Balan were living in platform. On 28.05.2006, at about 10.00 p.m in the night the accused came to the deceased Balans place in the platform and had a wordy quarrel with him by saying that his wife had eloped from him and the deceased Balan was the reason and by saying so the accused had beaten the deceased Balan by pulling his shirt, fisting on his head, face and due to the attack caused by the accused the deceased Balan had fell with his back on the cement floor and hit his head and the accused had also throttled his neck and the witnesses who were present including P.W.1 had intervened and since the crowd gathered in that place the accused had fled away from the scene of occurrence. Since Balan was not having any external injuries, they left him there itself and went to their houses respectively and on the next day when P.W.1 came to the said platform he found that Balan was lying there and he thought that Balan was in a drunken stage and so he was lying there and nobody had noticed him and thereafter on 30.05.2006, when he went to the same place for selling flower he found that the deceased Balan was lying on the same condition and P.W.1 had approached him and asked him had he not gone for work and for that Balan could not speak properly and therefore P.W.1 and Krishnan had taken him and admitted him in the Government General Hospital. Thereafter on 30.05.2006, by 05.00 p.m Police enquired him and he gave a complaint to the Police and Police had registered the case u/s.341 and 307 I.P.C. Thereafter on 07.06.2006, by 030. p.m the said Balan died and the death intimation was given by the hospital authorities to the Inspector of Police and accordingly the F.I.R has been altered into 302 I.P.C and further investigation had been done and charge sheet has been filed. p.m the said Balan died and the death intimation was given by the hospital authorities to the Inspector of Police and accordingly the F.I.R has been altered into 302 I.P.C and further investigation had been done and charge sheet has been filed. 3. The case of the prosecution as spoken through the witnesses examined by the prosecution would be as follows: (a) P.W.1 and the deceased Balan were working in the same place and according to him the deceased and accused/appellant were doing works of construction sites and the deceased Balan had no relatives. After returning from construction work, he used to take food in the hotel and stayed at the cement pial in the auto stand. (b) P.W.1 would speak to the effect that he was selling flower at the platform of Annanagar West 6th Avenue near Bombay store and there was a auto stand opposite to the place of business and in the auto stand there was a cement pial construction around the tree and the deceased Balan used to stay in the said cement pial. He was doing masonary work and he would not go for quarrel with anybody and the accused was his friend and they use to sit in the pial under the tree and on 28.05.2006 at about 10.00 p.m when he was about to leave the business place the deceased Balan and the accused were quarrelling and they were fighting with each other and P.W.1 had intervened and thereafter the accused went to his house. In the next day morning when he resumed his work, he saw Balan lying under the tree and he thought that the deceased Balan was drunk and was lying there. P.W.2 was having his tiffin shop on the 6th Avenue Anna Nagar West would speak to the effect that he went to Bombay shop on 28.05.2006 by 9.10 p.m and on the platform he could see that the accused and the deceased Balan were sitting and talking together under the tree. P.W.2 was having his tiffin shop on the 6th Avenue Anna Nagar West would speak to the effect that he went to Bombay shop on 28.05.2006 by 9.10 p.m and on the platform he could see that the accused and the deceased Balan were sitting and talking together under the tree. When he was about to leave the place the accused had beaten the deceased Balan holding his shirt and pulled him and Balan fell with his back and his head hit in the cement pial and again the accused had pulled him and hit his head on the floor and the accused was telling that the deceased was the cause for his separation of his wife and children from him. As soon as the crowd gathered the accused left the place. 4. On 30.05.2006, when P.W.2 went to Bombay shop the owner of the shop asked him to check up Balan, who was lying in the said platform and when they checked the deceased Balan he was not conscious and the owner of the Bombay store had given money to take him to hospital and accordingly they took him in an auto and admitted him in the emergency ward. Thereafter the police enquired him. On 07.06.2006 he came to know that the appellant died due to the injuries he sustained. The father in law of the accused was examined as P.W.4 who came to know about the assault against the deceased Balan by the accused and he went and saw Balan who was lying under the tree on 30.05.2006 and so he also took him to the hospital and admitted him in the emergency ward for treatment. 5. P.W.4 would state that accused asked him about the pledging of jewels by the accused and for that P.W.4 told him about the disclosure made by the deceased Balan to his daughter Aparna (i.e) the wife of the accused. The wife of the accused was also examined as P.W.5 and she corroborated the evidence of P.W.4 who is her father. P.W.6 was the auto driver witnessed the investigator preparing the Observation Mahazar and Sketch at the scene of occurrence. Moreover the belongings of the deceased Balan like slippers, lungis, full hand shirts were seized from the scene of occurrence. They are marked as M.Os.1 to M.O.5. P.W.6 was the auto driver witnessed the investigator preparing the Observation Mahazar and Sketch at the scene of occurrence. Moreover the belongings of the deceased Balan like slippers, lungis, full hand shirts were seized from the scene of occurrence. They are marked as M.Os.1 to M.O.5. On the death of Balan on 07.06.2006, due to the injuries sustained by him the case was altered from sections 307 to 302 I.P.C and the report was filed by P.W.7. 6. P.W.16 is the Doctor who would speak that they had admitted the deceased Balan when he was brought for treatment by P.W.4 on 30.05.2006 by 09.15 a.m, he was unconscious and therefore he was admitted in the hospital for treatment. P.W.17 is the Doctor who had given treatment to the deceased Balan when he was admitted in the hospital, C.T.scan was taken and since there was congestion in his brain surgery was done immediately and he was kept in I.C.U but he died on 07.06.2006 at 11.50 a.m and his death certificate is Ex.P.17. P.W.10 is the Doctor who had performed the autopsy on the body of Balan. After the completion of autopsy, he had given the Post Mortem report in Ex.P.13. He had opined that the deceased would have died due to the head injuries caused to him. 7. P.W.11 would speak to the effect that the Police had seized 5 pledge receipts from P.W.5 and he had also put signature as a witness in the said Mahazar Ex.P.14. P.W.12 is the pawn broker who had advanced monies to the accused after pledging of the jewels. Accordingly, he had given five pledge receipts Ex.P.2 to Ex.P.7. 8. The Investigating Officer has recorded the statements from various witnesses and collected the M.Os and recorded as Seizure Mahazars and obtained Post Mortem Certificate and received chemical analysis reports from the Forensic science laboratory and thereafter filed the final report. 9. Based on the final report, the case was taken on file by the Judicial Magistrate and it was committed to Sessions court and in turn it was made over to the Fast Track Court No.3, Additional District and Sessions Judge, Chennai and the necessary charges have been framed and the Trial court had examined the aforesaid witnesses. Thereafter the lower court had recorded conviction u/s. 302 I.P.C against the accused against which the appeal has been preferred by him. 10. Thereafter the lower court had recorded conviction u/s. 302 I.P.C against the accused against which the appeal has been preferred by him. 10. Learned counsel for the appellant Mr.S.Panneer Selvam would submit in his argument that the motive put forth by the prosecution was too flimsy and it cannot constitute for a murder as stated by the prosecution against the appellant. He would further submit in his argument that the prosecution has not properly explained the manner in which the occurrence had taken place and the witnesses of the prosecution are interested and their testimony were filled with discrepancies. He would also submit that the witnesses P.Ws.1 to 5 are put up witnesses and the appellant was not responsible for the cause of death of the deceased person. It is very curious to note that the occurrence said to have taken place on 28.05.2006 where as he was admitted in the hospital only on 30.05.2006 at about 09.15 a.m. He would further submit that there was an inordinate delay in giving F.I.R which is fatal to the case of the prosecution. The delay in F.I.R would lead to the inference that it was a fabricated document and no reliance can be attached it. The main witnesses who were staying with the deceased person and the owner of the Bombay store were not examined to speak the truth and if they were examined by the prosecution the innocence of the accused would have been displayed to the court and therefore non examination of those important witnesses are fatal to the prosecution case. He would also submit that the evidence of the alleged eye witnesses namely P.W.1 and P.W.3 would refer to the alleged incident with material contradictions. Evidence adduced on the side of the prosecution did not rope in the accused in the offences and therefore the benefit of doubt should have been given to him and he may be acquitted from all the charges framed against him. He would also submit in his argument that even the alleged occurrence as put forth by the prosecution is found to be true, it would depict only the offence of culpable homicide and not a case of murder, since motive as well as the sequence of the overtact inflicted upon the deceased person would not implicate the crime of murder. He would also submit in his argument that even the alleged occurrence as put forth by the prosecution is found to be true, it would depict only the offence of culpable homicide and not a case of murder, since motive as well as the sequence of the overtact inflicted upon the deceased person would not implicate the crime of murder. Therefore, he would submit in his argument that the punishment imposed upon the accused u/s.302 I.P.C has to be set aside or modified in the circumstances of the case and the sentence may be reduced. 11. We have also heard the arguments of the learned Additional Public Prosecutor. On consideration of the submissions made on either side, it could be very well seen that the prosecution had examined the eye witnesses P.W.1 and P.W.3 who actually witnessed the occurrence in which they have spoken to the effect that the accused and the deceased Balan were having wordy quarrel on 28.05.2006 at about 10.00 p.m in the place situated opposite to Bombay stores in Annanagar West 6th Avenue. It has also been found that the said wordy quarrel had become scuffling in between the accused and the deceased Balan with their hands. Further it has been shown to court that the deceased Balan was assaulted on hands and thereafter the said appellant had taken him on the cement pial hitting his back and head and thereby the accused hit the deceased Balan with his head on the cement floor. The other prosecution witnesses would speak to the effect that the said Balan was living in the platform opposite to Bombay store at Annanagar West 6th Avenue in the cement pial constructed in auto stand near Thangam colony and the accused was his friend and they were in talking terms. The evidence would also come to show that the accused, deceased Balan and P.W.3 were working in the construction site and the deceased Balan was also doing mason work and he used to take food in the hotel and used to stay in the said auto stand cement pial during nights. Nothing is suggested in the cross examination of P.W.1 and P.W.3 against their opinion to show that their evidence were adduced either as interested or falsely spoken in order to implicate the accused in the crime not connected to him. 12. Nothing is suggested in the cross examination of P.W.1 and P.W.3 against their opinion to show that their evidence were adduced either as interested or falsely spoken in order to implicate the accused in the crime not connected to him. 12. Whether such evidence of these witnesses were corroborated by other evidence produced by the prosecution is the next point to be considered. As seen from the Accident Register copy, Ex.P.16, is noted for the cause of the injuries was due to the assault by a knowing person, with his hands. Injuries mentioned in Post Mortem Certificate Ex.P.12 would go to show that the deceased sustained severe injuries on his head especially on his left front tempro parietal region of scalp. The opinion given by the Doctor for the cause of death of the deceased was due to the effect of head injury. Injuries mentioned by the Doctor would corroborate with ocular evidence of P.W.1 and P.W.3. The Accident Register copy Ex.P.16 and oral evidence adduced on the side of prosecution would go together to show that immediately after the assault caused by the accused the deceased Balan became unconscious and was lying in platform for two days and finally he was found is state of unconsciousness due to the assault inflicted on him by the accused and he was also admitted in the hospital and his unconsciousness was also clinically found by the Doctor in Ex.P.16. The cogent evidence connecting the accused from the time of occurrence till his death would go a long way to show that the evidence of P.W.1 and P.W.3 pointing the accused guilty are believable. 13. The evidence of the Doctor is quite sure that the death was caused due to the head injury. Therefore, we are if the considered opinion that the appellant/accused was the cause for the death of the deceased Balan and accordingly he is found to have committed the offence of causing death of Balan. 14. As far as the motive for committing the offence is concerned the disclosure made by Balan, regards the pledge of jewels by the has been stated. P.W.4 and P.W.5 spoke about the pledging of jewels. The evidence of P.W.3 would go to show that the accused and Balan were friends and were working in the same construction site. 14. As far as the motive for committing the offence is concerned the disclosure made by Balan, regards the pledge of jewels by the has been stated. P.W.4 and P.W.5 spoke about the pledging of jewels. The evidence of P.W.3 would go to show that the accused and Balan were friends and were working in the same construction site. It was spoken by P.Ws.1 and P.W.3 that the incident happened in the scuffling which followed a wordy quarrel erupted in between them. Admittedly there was no weapon used by the accused in the incident which would show that he had no intention to kill the deceased Balan. Due to the said scuffling had in between them, Balan fell on his back and hit his head on the cement pial and the accused had made his head hit on the cement floor also. In the aforesaid circumstances, we are of the concerned view that there could not be any intention on the part of the accused to cause murder on the deceased Balan, who was admitted on the hospital on 30.05.2006 and was given treatment for about nine days and he died only on 07.06.2006. In the aforesaid circumstances, the relevant section attracting the crime committed by the accused would be section 304 Part I I.P.C. The lower court had committed an error in convicting and sentencing the accused u/s. 302 I.P.C, whereas the relevant provision attracted for the offence committed by the accused would be 304 part I I.P.C. 15. Accordingly the appellant/accused is convicted and sentenced u/s.304 part I I.P.C for a period of seven years rigorous imprisonment which would be sufficient and consequently the conviction and sentence passed by the lower court are modified to that extent. 16. In fine the appeal is allowed in part and the conviction and sentence of life imprisonment u/s.302 recorded by the Trial court is modified into one u/s.304 Part (I) I.P.C., for which he would stand sentenced to seven years rigorous imprisonment and the period already undergone by the accused is ordered to be set off. The appeal is disposed accordingly.